381 F.3d 143 (3rd Cir. 2004), 03-1626, Soltane v. United States Dept. of Justice

Docket Nº:03-1626.
Citation:381 F.3d 143
Party Name:Camphill SOLTANE, Appellant v. US DEPARTMENT OF JUSTICE; Immigration & Naturalization Service.
Case Date:August 26, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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381 F.3d 143 (3rd Cir. 2004)

Camphill SOLTANE, Appellant


US DEPARTMENT OF JUSTICE; Immigration & Naturalization Service.

No. 03-1626.

United States Court of Appeals, Third Circuit

August 26, 2004

Argued Dec. 5, 2003.

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Lawrence H. Rudnick (Argued), Philadelphia, for Appellant.

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Patrick L. Meehan, Laurie Magid, Virginia A. Gibson, Susan R. Becker (Argued), Philadelphia, for Appellee.

Before SLOVITER and ALITO, Circuit Judges, and OBERDORFER, District Judge.[*]


ALITO, Circuit Judge.

Camphill Soltane ("Camphill") appeals a final order of the United States District Court for the Eastern District of Pennsylvania affirming the denial of Camphill's visa petition on behalf of an employee sought to be classified as a "special immigrant religious worker." Because that denial was predicated on legal error and improper findings of evidentiary deficiency, we vacate the judgment of the District Court and remand this case for reconsideration by the agency.


Camphill Soltane is a non-profit organization, dedicated to providing services to young adults with mental disabilities. Rooted in "Anthroposophy" and the teachings of Rudolph Steiner, Camphill seeks to create a spiritual community through cooperative life, social interaction, and spiritual activity. "The Camphill Movement is focused on Christianizing the ordinary aspects of life for the mentally handicapped as well as for the fully able members of the community...." Appellant Br. at 6.

Since 1996, the Chester County facility of Camphill has employed Annagret Goetze, a citizen and native of Germany. Goetze was originally admitted into the United States in the R-1 classification as a nonimmigrant religious worker. In 2000, Camphill filed an I-360 immigrant visa petition on behalf of Goetze with the Immigration and Naturalization Service (INS).1 This petition sought to have Goetze classified as a special immigrant religious worker so that she could serve in the proposed position of houseparent, music instructor, and religious instructor at the Camphill facility.

The Vermont Servicing Center of the INS made a request for further evidence showing that Goetze had two years of experience in a religious occupation and that she had received specific religious training. App. I at 32. Camphill responded with explanations of the training process and the religious nature of the position, see App. II at 59-61, as well as a set of literature (some authored by Steiner) that discussed Anthroposophy and the "Camphill Movement" and was presumably submitted as representative training material. See App. II at 62-146.2 Notwithstanding the supplemental submissions, the INS denied Camphill's petition in February 2001, finding that Camphill had failed to establish that Goetze was to be employed in a religious occupation, as required under the regulations. App. I at 31.

Camphill filed a timely appeal with the Administrative Appeals Unit. In December 2001, a final administrative decision was rendered by the Administrative Appeals Office (AAO) of the INS. Reviewing the record de novo, the AAO affirmed on four

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independent grounds, any one of which alone could have justified the denial: (1) Camphill did not qualify as a religious organization as required by 8 U.S.C. § 1101(a) (27) (C); (2) the proposed position of houseparent was neither a religious occupation nor a religious vocation; (3) there was insufficient evidence to determine whether Goetze had worked in a religious position for two years preceding the petition; and (4) Camphill provided insufficient evidence to prove that there was a qualifying tender of a job to Goetze.

Camphill appealed for review of the AAO decision in the Eastern District of Pennsylvania, under the Administrative Procedure Act (APA). In February 2003, the District Court entered judgment against Camphill, affirming the AAO decision on all four grounds. This appeal followed.


As a preliminary matter, we are required to consider the issue of subject matter jurisdiction, even though neither party contends that it is lacking here. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ("[E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.") (internal quotes omitted). The jurisdictional question in this case centers on 8 U.S.C. § 1252(a) (2) (B) (ii), which provides in pertinent part:

Notwithstanding any other provision of law, no court shall have jurisdiction to review ... any other decision or action of the Attorney General the authority for which is specified under this title [8 U.S.C. §§ 1151 et seq.] to be in the discretion of the Attorney General, other than the granting of relief under [8 U.S.C. § 1158(a)] [governing asylum].

Id. In this case, the statutory basis for Camphill's visa request was 8 U.S.C. § 1153(b) (4), which governs the issuance of preference visas to "certain special immigrants," including those engaged in a "religious occupation or vocation," see id. § 1101(a) (27) (C) (ii). If the AAO's denial of Camphill's visa request constituted a "decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General," then under § 1251(a) (2) (B) (ii) the District Court lacked jurisdiction to review the agency action.

The key to § 1251(a) (2) (B) (ii) lies in its requirement that the discretion giving rise to the jurisdictional bar must be "specified" by statute. In other words, "the language of the statute in question must provide the discretionary authority" before the bar can have any effect. Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003). For example, in Spencer Enterprises, the Ninth Circuit found no discretion specified in a statute that listed "clear[] ... eligibility requirements" with instructions that a visa "shall" issue when those requirements are met. By contrast, in Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir. 2004), we found that the statute at issue "explicitly assign[ed]" discretion to the Attorney General, focusing on the use of specific language to that end ("discretion" and "sole discretion"), together with instructions that certain actions "may" (as opposed to "shall") be taken when any of the enumerated conditions is satisfied.

The statute at issue in this case provides:

Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified special immigrants described in [8 U.S.C. § 1101(a) (27)]Page 147

(other than those described in subparagraph (A) or (B) thereof), of which not more than 5,000 may be made available in any fiscal year to special immigrants described in subclause (II) or (III) of [8 U.S.C. § 1101(a) (27) (C) (ii) (II) or (III)], and not more than 100 may be made available in any fiscal year to special immigrants, excluding spouses and children, who are described in [8 U.S.C. § 1101(a) (27) (M)].

8 U.S.C. § 1153(b) (4) (emphasis added).

A "special immigrant," as that classification pertains to ministers and other religious workers, is defined as:

(C) an immigrant, and the immigrant's spouse and children if accompanying or following to join the immigrant, who-

(i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States;

(ii) seeks to enter the United States-

(I) solly for the purpose of carrying on the vocation of a minister of that religious denomination,

(II) before October 1, 2008, in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or

(III) before October 1, 2008, in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c) (3) of the Internal Revenue Code of 1986) at the request of the organization in a religious vocation or occupation; and

(iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (i);

8 U.S.C. § 1101(a) (27) (C).

The language of 8 U.S.C. § 1153(b) (4) makes clear that the Attorney General is required to grant preference visas to those who fall within certain numerical limits and qualify as "special immigrants" under § 1101(a) (27). These relevant numerical limits are set by statute, see 8 U.S.C. § 1153(b) (4), and the definition of "special immigrant" (as relevant to religious workers) is fairly detailed and specific, with no explicit reference to "discretion" as in Urena-Tavarez. In fact, 8 U.S.C. § 1153(b) (4) bears some similarity to the neighboring provision, 8 U.S.C. § 1153(b) (5), which was analyzed in Spencer Enterprises, in that it sets forth specific eligibility requirements, with instructions that the visa "shall" issue if those requirements are met. Accordingly, we do not read § 1153(b) (4) as having "specified" that the granting of the visas in question "be in the discretion of the Attorney General."

We note that the dissent in Spencer Enterprises criticized the majority in that case for what it believed was an overly "mechanical" approach, including reliance on the semantic distinction between "may" and "shall." See Spencer Enterprises, 345 F.3d at 696-98. (Beezer, J., dissenting). We agree that the question of whether discretionary authority has been specified by statute should be considered by examining the statute as a whole. But we do not think (as the Spencer Enterprises dissent goes on to suggest) that the use of marginally...

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